Two recent events reminded me of the absurdity of California’s “Proposition 65” cancer warnings. You are all familiar with this regulatory scheme that started as a valid public health initiative that quickly became a boon for lawyers on both sides of the bar. What may be considered as a prime example of how this good idea has gone astray is the final resolution of a 10-year long court battle regarding the cancer risks purportedly associated with drinking coffee.
Ten years ago a “nonprofit organization” represented by plaintiffs’ attorney Raphael Metzger began a case against Starbucks and many others alleging that since roasted coffee beans contain acrylamide, a listed carcinogen with the state of California, coffee retailers should be fined for not including a Prop. 65 warning with the morning Joe they routinely sell to thousands of customers in the state. The case was assigned to Judge Elihu Berle, who you might recognize as the trial judge on the seminal O’Neil case that led to the “bare metal” defense for asbestos defendants in California.
The case did not proceed well for the coffee vendors, and several settled for amounts reported to be in the millions of dollars. No doubt vast amounts were spent with numerous high profile defense firms, but ultimately they achieved a favorable result. Perhaps unexpectedly, the California Office of Environmental Health Hazard Assessment recently rewrote their regulations concluding that acrylamide in coffee does not pose a cancer risk. Judge Berle has ordered the case dismissed. But only after 10 years of litigation and millions spent by settling defendants.
Trying to ease my mind from the vicissitudes of Prop 65 litigation, I decided to relax with some fishing. But even on a pier in the SF Bay, I could not escape yet another example of an absurd application of Prop 65. See the attached two photos. If you do not recognize it, that is a net fishermen use to raise up to the pier the big ones they have hooked (I say this only from having watched others as I never catch a big one). Notice the close up photo of the float on the net. It has a Prop 65 warning! How on earth could anyone ever sustain any type of exposure from that float that would actually enhance their risk of any type of cancer? But companies selling products into California have become so concerned with Prop 65 litigation that they now put warnings on everything. This type of over warning surely cannot be beneficial.
These are just a few examples of the ongoing excessive application of Proposition 65 that makes one wonder whether its requirement for warnings is actually benefitting California consumers.